IN THE CASE OF:
BOARD DATE: 2 September 2010
DOCKET NUMBER: AR20100007588
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant, the widow of the deceased former service member (FSM), requests correction of the FSM's records to show he remained enrolled in the Survivor Benefit Plan (SBP) for spouse coverage and that she be paid the SBP annuity.
2. The applicant states upon the FSM's retirement on 30 November 1996 he elected SBP coverage. She adds after his retirement they lived in Germany until February 1999 when he returned to Oklahoma to visit relatives. After the FSM's returned to Germany they were experiencing marital difficulties and were separated in March 2000. The applicant states the FSM returned to Oklahoma and she remained in Germany, but they were never divorced. The applicant offers the FSM died in a car accident on 28 July 2009. After being appointed a representative by the Retirement Services Officer in Schweinfurt, Germany, the representative informed her that the FSM had terminated SBP.
3. The applicant denies signing any form concurring with the FSM's request to terminate SBP coverage and insists that the signature on the copy of the DD Form 2656-2 (SBP Termination Request) is not her signature. She adds she was not in Oklahoma during the time the form was completed or at any time after the FSM returned to Oklahoma. The applicant concludes she realizes that before she can receive SBP, she must pay back premiums and she agrees to forfeit SBP annuity payments until the premiums are paid.
4. The applicant provides the following documents:
* a self-authored letter to this Board, dated 24 November 2009
* a copy of DD Form 2656-2
* a copy of the FSM's DFAS-CL 7220/148 (Retiree Account Statement)
* a copy of an email, dated 10 November 2009
* a copy of her Marriage Certificate
* the FSM's State of Oklahoma Certificate of Death
* a copy of her DD Form 1173 (U.S. Uniformed Services Identification Card
CONSIDERATION OF EVIDENCE:
1. On 20 January 1984, the applicant and FSM were married.
2. The FSM served on active duty until being retired on 30 November 1996 by reason of sufficient service for retirement in the rank/grade of sergeant first class (SFC)/E-7.
3. During his retirement processing, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he elected full Spouse Only SBP coverage with the applicant being named as the beneficiary.
4. On 2 March 1999, the FSM completed a DD Form 2656-2 in which he elected to terminate SBP. This form contains the supposed applicant's concurrence with her signature. Additionally, Item 6 (Witness) of this form states that "By my signature, I certify that the above named spouse/former spouse signed this form in my presence and that the above named spouse/former spouse produced a photo bearing identification document which identified him/her as the person signing this SBP Termination Request." The witness is listed as P---- S--- and contains her signature, title as the notary, and a notary seal.
5. The FSM's DFAS-CL 7220/148, effective 14 July 2009, shows under the SBP coverage section the entry "SBP Coverage Type: Discontinued Participation."
6. On 29 July 2009, the FSM died. Information contained on the FSM's Certificate of Death shows that his sister, P---- S---, was the informant. The FSM's sister was also listed as the notary on the DD Form 2656-2.
7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.
8. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP. Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll. The spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The applicant maintains she never signed the DD Form 2656-2 concurring with the FSM's request to termination SBP. It is noted that the applicant's signature on this form does not appear to be the same signature listed on her application to the Board. A review of the DD Form 2656-2 shows it was notarized by the FSM's sister. The fact that the FSM's sister signed and notarized this form, although not illegal, presents a conflict of interest.
2. In view of the facts in this case, the FSM's sister should have disqualified herself from notarizing a document from an immediate family member (her brother, the FSM). Therefore, in the interest of equity, it would be appropriate to show that the applicant did not concur with the FSM's request to terminate SBP; thereby reinstating SBP, full coverage, for spouse only.
BOARD VOTE:
____X___ ____X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing the FSM's DD Form 2656-2, dated 2 March 1999 was invalid;
b. showing the FSM's continued enrollment in the SBP for "spouse only" coverage; and
c. paying the applicant the SBP annuity retroactive to the FSM's death, less any SBP premium costs due.
____________X___________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100007588
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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